Extremity As A Strategy In Appellate Arguments

My fixation on King v. Burwell continues unabated. Recall that the issue in this statutory construction case is whether the text of the Affordable Care Act only permits the federal government to subsidize qualified individuals (by income) who purchase insurance on state-operated exchanges, or whether subsidies are also available to all qualified individuals, regardless of whether they purchase insurance through a state-operated exchange or the federal exchange, www.healthcare.gov.

The question on my mind today concerns the efficacy of a strategy that the defenders, the Solicitor General in particular, appear to have adopted in their appellate briefs: leading with a relatively weaker argument followed by a relatively stronger backup argument.  

By way of background, both sides argue that the text of the ACA is crystal clear and that the unambiguous text supports their respective and opposing positions.  That is, the challengers argue that the only reasonable interpretation is that the ACA authorizes subsidies solely for qualified individuals who purchase insurance through state-operated exchanges.  Similarly, the defenders argue that the only reasonable interpretation is that the ACA authorizes subsidies for all qualified individuals, regardless of whether they purchase insurance on a state-operated or federal exchange.  (For reasons discussed in my previous post, the outcome of this argument has potentially devastating real-world consequences.)

It is black-letter law that a statute is not ambiguous just because lawyers disagree on its meaning.  In King v. Burwell, however, hundreds of learned individuals, divided into two distinct and opposing camps, are arguing that the text of the ACA is clear and unambiguous.  Are they all intellectual frauds simply pursuing their respective political agendas?

The ACA’s challengers had little choice but to argue that the law was unambiguous with respect to the subsidy issue.  Conceding ambiguity would likely have been the death-knell for their position, for there is little to support resolving the ambiguity in their favor.  But the ACA’s defenders could have adopted a different strategy; they could have argued that the text of the ACA was ambiguous with respect to the subsidy issue and relied on an administrative law doctrine known as Chevron deference.  Under that doctrine, when an administrative agency (such as the IRS) is charged with enforcing/implementing a federal statute, and where the statute is ambiguous, the courts generally defer to the agency’s reasonable interpretation of the ambiguous law.  To be sure, the defenders did make this argument–but only as a backup to their primary argument that the text clearly and unambiguously supports their interpretation.

So, why did the defenders lead with the more “extreme” argument?  Of course, the answer may be that they honestly believe their proffered interpretation is, in fact, the only reasonably one.  Or perhaps they don’t believe that at all, but think that leading with that argument–in the face of a challenger with its own anti-matter version of that extreme position–makes it more likely the Supreme Court will accept the backup Chevron deference argument.  Or maybe they simply think that making two arguments rather than one gives them two shots at winning before the Supreme Court.

It is a fairly common strategy for appellate advocates to stake out an extreme position in a brief, knowing full well that such a position is legally weak, while offering a more credible legal argument as their backup position. 

Sometimes I think appellate advocates adopt this strategy out of fear.  They are afraid to not make what could be–at least theoretically–a winning argument.  I think that is a poor reason to make a weak argument.  The essence of good appellate advocacy is sound, reasoned judgment based on training and experience.  Throwing a variety of arguments against the wall and hoping one of them will stick is the antithesis of such judgment, which, after all, is what clients pay us for.

Other times, however, the strategy is deliberate.  The objective is to make an extreme argument that has at least a minimal level of credibility for the purpose of gently nudging the appellate court to adopt the more “moderate” position.

For my fellow appellate advocates, and to any judges who may read this post, do you think this is an effective appellate strategy?


One Comment on “Extremity As A Strategy In Appellate Arguments”

  1. Jeffrey Babbin says:

    The Government probably had to make the statutory text argument first; plus even the Chevron doctrine requires that the interpretation be plausible, and making the argument that the text requires the result helps to then make the interpretation plausible even if not a necessary interpretation. The key is not so much to avoid the argument in your brief, but to avoid getting bogged down in the weaker argument at oral argument so that you never get to the stronger argument. You might even lead with the second issue at oral argument by saying “We believe the text supports our position, but at the very least it’s a plausible reading and Chevron therefore . . .” — and then focusing first on the latter issue without abandoning the textual argument.


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